SANCTIONS–DENIED!!!

When I started this blog I asked fellow attorneys what issues they would like me to address. I received this response from a lawyer in San Francisco:

Key problem – judges that won’t crack down on parties that lodge bogus objections and don’t answer interrogs, and object to discovery demands that are straight forward. Amount of sanctions awarded is usually pitiful.

I can easily respond to this complaint by saying “Judges want to be liked,” or “Maybe the judge was intimidated by the big law firm” or “The judge is trying to establish a working relationship with the parties and awarding sanctions makes the losing party more hostile” or “The judge may have seen fault on both sides of the table.” However, the bottom line is I don’t know why your judge didn’t give you sanctions and neither do you, unless you argued the issue at the hearing.

In order to overcome the reluctance of the judge, you need to be proactive in your moving papers and your arguments at the hearing regarding your request for sanctions. Don’t be timid on asserting your position on this. It is just as important as your other arguments. Filing motions and the imposition of sanctions curbs discovery abuse and the 1986 Discovery Act recognizes this. Thus you need to bring the motion and start establishing a pattern of opposing counsel’s discovery abuse and create a record of an imposition of sanctions. Moreover, remember that judges are reluctant to impose a terminating sanction unless a history of lesser sanctions have first been imposed or prior discovery orders have been violated. See Weil and Brown, California Practice Guide: Civil Procedure Before Trial (TRG 2009) ¶ 8:1215 et seq.

When seeking an order to recover sanctions, C.C.P §2023.040 (pdf) requires your discovery motion to contain the following:

Notice–The notice of motion must expressly state that you are seeking [monetary, issue, evidence or terminating] sanctions as well as the identity of the person, party or attorney against whom sanctions are being sought.

Points and Authorities–Your moving papers must state the facts of the noncompliance, the authority as to why it is discoverable and the authority for the award of sanctions. Don’t make the argument requesting sanctions in your P’s and A’s an afterthought. Spend time on it. List all the garbage objections to very basic questions and the law’s supporting your interrogatory or request. For example: “The identity and location of witnesses are not protected by attorney work product or the right of privacy. C.C.P. §2017.010 (pdf) clearly states that the identity and location of witnesses are discoverable.” Detail all the stonewalling, hostility and lack of good faith efforts during the meet and confer process. Make it clear that your train has not left the station and you are losing precious trial prep time. Make sure you site the authority for the sanctions you are requesting.

Declaration–Declarations need to state (1) facts of the noncompliance and discovery abuse in which the declaring party has personal knowledge (If necessary use multiple declarations) (2) the meet and confer process, (3) time you have spent and are going to spend on each aspect of the motion, (4) your hourly rate and (5) the calculations for the sanctions. Again, do it in detail!! Hint: Do not cut your hours. You need to let the judge know how much money this discovery dispute is costing your client.

In your moving papers point out to the court:

C.C.P. §2023.030 (pdf)(a) states that“If a monetary sanction is authorized by any provision of this title (and almost all of them are), the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” [Emphasis added]

The purpose of discovery sanctions is not to provide a weapon for punishment, forfeiture, and the avoidance of the trial on the merits, but to prevent abuse of the discovery process and correct the problem presented. California Discovery Citations (TRG 2010) ¶1:6 citing Parker v. Wolters Kauwer U.S., Inc. (2007) 149 CA4th 285 (pdf) at 301.

Discovery sanctions are not a windfall. They are to compensate for costs and fees incurred by the party in enforcing discovery or defending a meritless motion. See Weil and Brown, California Practice Guide: Civil Procedure Before Trial (TRG 2009) ¶8:1213 citing Caryl Richards, Inc. v. Superior Court (1961) CA2d 300 at 303.

Be prepared to argue for sanctions. Do not be afraid to make a record. If you think that the judge is still reluctant to give you sanctions, then suggest that the sanctions be stayed to be lifted by the court at a later date (i.e., when the party complies with the order or, the one I like to use, by the trial judge.). This is important, because you need to establish a history of abuse. Past conduct that has already been considered by the court cannot be the basis for additional sanctions. See Weil and Brown, California Practice Guide: Civil Procedure Before Trial (TRG 2009) ¶8:1209a citing Andrus v. Estrada (1995) 39 CA4th 1030 (pdf) at 1043.

The court needs to take discovery motions seriously. They impact a case just as much as and in many cases more than demurrers and motions for summary judgment. However, it is your job to educate the judge as to why you are entitled to sanctions. Good luck!!

Let us know if you are successful in your next quest for discovery sanctions.

Related Posts

All good and well, but where someone can really get screwed is when they are pro per.

Since pro per parties can’t get attorney fees sanctions, the best they can hope for is a few dollars if they had copying fees, parking costs, etc. Attorneys know this so they have no fear in making the most bogus objections which really creates more work for the courts.

A pro per as well as represented parties can also use C.C.P. Section 177.5–violation of a court order–where the court collects up to $1000.00 in sanctions.

Catherine

Ive had the worst deal ever with my court case. My attorney filed Request for Production of documents after our hearing, where opposing counsel requested mediation and the Judge ordered it. Opposing counsel failed to file a discovery before the first hearing and there are several taxes issues involved in the case, so we had to request the tax records. The Judge ordered the documents be submitted in 30 days and my attorney gave 3 reminders in email, did a meet and confer and extended them an extra week to turn over the documents. When they failed to comply, we filed a Motion to Compel. At the Motion Hour, opposing counsel said his client had just given him the docs that morning and he would be turning them over. The Judge gave an order to give the documents within two days. My attorney received a copy hand delivered and the Certificate of Service stated opposing counsel was also hand delivering a copy to the courts, but never did. My attorney did not argue for my legal fees at all to the Judge and just accepted opposing counsels statement. Afterwards my attorney filed a tendered order for legal fees and, to no surprise, the Judge denied it. The entire process cost me a lot of money to get the documents and I was shocked not to get anything back in legal fees, and not to mention that the documents I got was extensively incomplete as well. Now I do not have the money to continue pressing for the remaining documents, and our hearing is only a few weeks away.

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ABOUT KATHERINE

Katherine Gallo is a renowned expert in complex discovery issues, having developed a reputation with her extensive discovery seminars, in-house discovery training and in-depth articles on the discovery process.

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